P.C Pandit, J.:— This order will dispose of two connected Civil Revision Nos. 591-A and 592-A of 1965 filed by the tenant against the order of his ejectment from the shops in dispute passed by the appellate authority reversing the decision of the Rent Controller. Two adjacent shops in the city of Amritsar were taken on rent by one Mela Singh, predecessor in interest of the present petitioner and respondents Nos. 2 to 6 by means of two separate rent deeds. Mela Singh, the original tenant having died, two applications for ejectment were filed by the landlord against his heirs and legal representatives. The ejectment was claimed on the ground that the tenant had committed such acts as were likely to impair materially the value or utility of the shops in dispute, which was covered by section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ‘the Act’). The facts found in this case about which there is no dispute, now are that the tenant during the continuance of his tenancy had made an opening 6′ × 2′ in the wall separating the two shops for his own convenience. It is further found that this opening could be closed at a cost of Rs. 15/- or Rs. 20/-. There was no other damage caused to the premises. The question for determination, therefore, is whether on these facts it could be held that the tenant had committed such acts as were likely to impair materially the value or utility of the shops. The Rent Controller took the view that the said opening did have the effect of reducing the value of the shops, but only to the extent of about Rs. 20/- and that could not be treated as material within the meaning of section 13(2)(iii) of the Act. As regards materially impairing the utility of the shops, he was of the opinion that this opening must have increased the utility of the shops so far as the tenant was concerned, because otherwise there was no reason why he should have made this opening He, however held, taking the shoo individually, the opening must be taken to have affected their utility adversely, ‘but since the opening could be closed at a nominal cost of Rs. 15/- or Rs. 20/-, it had to be ignored’. He further held that by closing the opening, the shops could be brought back to their original position without affecting the utility. Finally, he concluded that the opening had neither materially impaired the value nor materially impaired the utility of the shops in dispute.

2. The appellate authority, on the other hand, observed that in order to show that the utility of a rented building had been materially impaired it was not necessary to prove that its value had also materially diminished. The circumstances that the opening could be remedied at an expense of about Rs. 15/- or Rs. 20/- was, according to him, therefore, wholly immaterial for the purpose of deciding as to whether the utility of the shops had been materially impaired or not. He further said that there was nothing in section 13(2)(iii) which would indicate that the impairment of the utility of the shops in dispute had to be considered with reference to the use to which they were being put by the tenant or with reference to his convenience.

3. The question had to be considered ‘abstractly’ so that what was to be seen was whether the shops could be utilised in the same manner and to the same extent as when they had just been let out to the tenant. The existence of the opening, according to him, ruled out the possibility of their being used conveniently as two separate units by two different tenants. This actor, in his opinion, clinched the matter in favour of the landlord and he, consequently, held that the utility of the two shops had been materially impaired on account of this opening having been made by the tenant.

4. The only point for decision in this case is whether the opening ??? in the intervening wall of the two adjacent ??? on rent was likely to impair materially the value or utility of the said shops when it was found that the closing of this opening would cost only about Rs. 5/- or Rs. 20/-.

section 13(2)(iii) of the Act reads thus:

“13. ****

(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied—

(i) ***

(ii) ***

(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or

the Controller may make an or der directing the tenant to put the landlord in possession of the building or reeled land and if the Controller is not so satisfied he shall make an order rejecting the application;

*****”

5. A reading of this clause would show that before the Controller makes an order for the ejectment of the ten int he has to be satisfied that the tenant has committed such acts as are likely to impair materially either the value of the rented building or the utility of the said building. If the landlord is able to establish any of these two grounds, he can get an order of eviction from the Rent Controller in his favour.

6. It is not disputed that the said opening is not likely to impair materially the value of the two shops, because the same can be closed at a cost of only Rs. 15/- or Rs. 20/-. Now the question is whether this opening is likely to impair materially the utility of the said shops. In other words, has the usefulness of the said shops been substantially diminished by this opening? Admittedly these, shops were let out to the tenant as two independent units by two separate rent deeds. Has the tenant, during the course of his tenancy, done something to the premises which was likely to impair materially their utility, so that they would not be in a position to be let out independently as separate units after he vacates them? It is undisputed that by spending only Rs. 15/- or Rs. 20/- the premises could be put back exactly in the same position in which they were rented out. That means that the profitableness of the shops would not be diminished essentially in an important, degree by this opening. It is true, as remarked by the appellate authority, that the utility of the shops had not to be considered from the point of view of the convenience of the tenants and the use to which they were being put by them Under this clause, it is the Rent Controller who has to be satisfied if the tenant has committed such an act which is likely to impair materially the utility of the said shops. It is also true, as observed by him, that what was to be seen was whether the shops could be utilised the same manner and to the same extent as when they had been let out to the tenant. But in my opinion, the learned appellate authority has gone wrong when he says that the existence of the opening rules out the possibility of these shops being used conveniently as two separate units by two different tenants. His view seems to be that under this clause, the tenant is not authorised to make even the slightest possible change in the rented premises for their proper enjoyment and the moment he does that he is a liable to eviction irrespective of the fact whether the rented building could be brought ??? by incurring a little expense. In my ??? that the tenant cannot make even a small alteration, which is necessary for the proper enjoyment of the tenant premises. It is of course understood that he cannot make material changes in the building or alter the nature of the accommodation. The small alterations that he makes for the proper enjoyment of the premises should be such as the tenant may be able to remove by incurring a small expenditure and without in any way causing damage to the rented building. If the alteration made by the tenant in the building is not significant and can be easily repaired, the landlord cannot ask for his eviction on that ground. Further, the appellate authority has ignored the words ‘impair materially’ occurring in this clause. If the opening made by the tenant could be closed by spending a nominal amount of Rs. 15/- or Rs. 20/-, it could not be said that he had done such an act which was likely to impair materially the utility of the building.

7. The view that I have taken above finds support in the decision of Falshaw, C.J in Nand Lal v. Dr. Gurbaksh Rai,1 where it was observed—

“The finding regarding impairing materially the value or utility of the building is based simply on the fact that in the portion of the shop used as a kitchen there are some marks of smoke on the walls, and since this can easily be put right with a little cleaning and a coat of white wash it is quite impossible to say, that the value or the utility of the building has been materially impaired”.

8. Similarly in Sm. Savitri Devi v. U.S Bajpai . A.I.R 1965 Nag 60. a Division Bench of the Nagpur High Court held thus—

“The landlord, in order to be entitled to the grant of permission to terminate the tenancy is required not only to prove an act of waste on the part of the tenant but also to prove that the said act is likely to impair materially the value or utility of the house. Where the tenant has raised temporary shed which did not alter or demolish any part of the house except a portion of the front compound wall, so far as the erection of the temporary shed is concerned, it cannot be said to be an act of waste in the sense in which it is understood in law.

As regards the pulling down of the portion of compound wall, while pulling down a part of the building is prohibited under the general law, it will not amount to an act that can be impeached under the Rent Control Order if the damage done is not significant and can be easily repaired. Such an act will not entitle the landlord to the grant of permission to terminate the tenancy unless it is likely to impair materially the value or utility of the house itself”.

9. In view of what I have said above, these petitions succeed with the result that the orders of the appellate authority are set aside and those of the Bent Controller restored. The parties are, however, directed to bear their own costs throughout.

10. Petition allowed.